Notes on the Administrative State


The Administrative State in the 1790s

  • the military (a few hundred soldiers)
  • U.S. prosecutors, Marshals, deputy Marshals in 13 District Courts
  • postmasters
  • customs personnel: harbor masters, etc.
  • The Bank of the United States


The Bureaucracy and the Constitution

U.S. bureaucracy:

  • transients: political appointees in supervisory positions
  • specialist professionals: subject to external incentives & norms; semi-powered:
    • strong influence on policy in own area
    • membership in interest networks ("subgovernments")
    • diverse backgrounds; trained in a wide variety of public universities <-- Morrill Act (1862)
    • managed by transient non-professionals
    • [also: expertise often commands public credibility]
  • "functionist" career civil servants <-- Pendleton Act (1883)
  • pre-civil service: rotationism under the spoils system (transient political appointees at all levels)

Other bureaucracies:

  • retainers: patronage appointees who remain long-term
  • mandarins: trained generalists selected competitively from elite classes
  • problems of concentrated power and competent corruption

Bottom line: Implications of emergent features of bureaucratic structure important to constitutional legitimacy and stability.


The President and the Administration

Constitutional clauses bearing on executive power

  • The Vesting Clause (Article II Section 1): "The executive power shall be vested in a President"
    • compare the legislative vesting clause (Art. I Sec. 1): "All legislative Powers herein granted shall be vested in a Congress..."

  • The Opinions Clause (Article II Section 2): "he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices..."

  • The Inferior Officers Appointments Clause (Article II Section 2): "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments"

  • The Take Care Clause (Article II Section 3): "he shall take care that the laws be faithfully executed..."

The unitary executive theory: Vesting Clause + Take Care Clause => President has complete power of supervision and removal over all executive officials.

  • strong version: among other things, full presidential removal power and no "independent agencies"
  • weak version: over some executive functions, Congress retains wide authority

Actual language of the bills creating the first Departments:   Foreign Affairs,   War,   Treasury

Note this language from Sec. 4 of the bill creating the Treasury Department:

it shall be the duty of the Secretary of the Treasury... to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office... (Sec. 2)

the... Treasurer shall..., on the third day of every session of Congress, lay before the Senate and House of Representatives, fair and accurate copies of all accounts by him from time to time rendered to, and settled with the Comptroller as aforesaid, as also, a true and perfect account of the state of the Treasury. (Sec. 4)

Lower-ranking officials specified for the Treasury Department:

  • Treasurer
  • Comptroller (explicitly shielded from presidential direction)
  • Auditor
  • Register

Specified certain duties and procedures in detail. Example:

  • "it shall be the duty of the Treasurer to receive and keep the monies of the United States, and to disburse the same upon warrants drawn by the Secretary of the Treasury, countersigned by the Comptroller, recorded by the Register, and not otherwise" (Sec. 4).

"Departments" vs. "Executive Departments" (language in Article II Sec. 2) as applied by the First Congress

  • Department
    • "heads of departments"
    • Department of the Treasury
    • Inferior Officers Appointments Clause
  • Executive department
    • "principal officers of executive departments"
    • Departments of Foreign Affairs, War
    • Opinions Clause


The concepts of executive (political, discretionary) versus administrative (managerial, ministerial) powers.

  • Political thought around 1900 maintained this as a clear distinction, using the terms "executive" and "administrative."
  • An increasingly regular habit of 20th century political thought was to combine all powers under "executive," culminating in the "unitary executive" theory.
  • Framers didn't have a clear terminological distinction.
    • Referred to "executive" powers when they meant the discretionary, political powers of the President.
    • Didn't usually distinguish administrative powers.
    • (But see discretionary vs. ministerial duties in Marbury v. Madison)
  • Lessig & Sunstein suggest: the Vesting Clause refers to political/discretionary functions of the executive branch, but the Framers meant to give Congress ability to specify administrative details by law when they wished.

Events of the "Bank War"

  • 1816 first Bank of the United States having been allowed to expire in 1811, a second was chartered under former Bank opponent Pres. Madison; charter for 20 years.
  • 1832 Jackson vetoed re-chartering (although charter would not expire until 1836).
  • 1832 Jackson re-elected, with a platform that included suppressing the Bank's power
  • 1833 the removal of deposits:
    • Treasury Sec. McLean expressed opposition in advance;
    • McLean elevated to Sec. of State; replaced by William Duane, who unexpectedly refused to comply, and was fired;
    • replaced by Atty. Gen. Taney (who had from the beginning expressed strong support for the removal of deposits).
  • 1833 Bank pres. Nicholas Biddle contracted credit to create political pressure for reconsideration of rechartering; ended up strengthening support for Jackson.
  • 1834 Whig-controlled Senate passed censure resolution against Jackson.
  • 1837 censure "expunged" shortly before Jackson left office.

Important: excerpts from Clay's speech, pp. 82-83. "Clay could still point backward to a shared understaning of the nature of the original presidency, one perhaps eclipsed by the times, but nonetheless still alive in the memory of the nation."

Bottom line: possibilities of "original meaning" of executive power. Also: implications of the allocation of power between President and Congress for efficiency, legitimacy, republican & democratic ideals.


Rulemaking and the APA

New Deal agency approach: "akin to special purpose courts" relying on "adjudicatory hearings"

The Administrative Procedures Act of 1946

  • procedures for formal and informal rulemaking
  • include "a concise general statement of its basis and purpose" informed by the hearing or public comment
  • advantages of rulemaking over old approach

Legislative rulemaking:

  • example of CAFE Standards.
  • Energy Policy and Conservation Act of 1975 set initial care standards, directed DoT to modify in future and to set standards for light trucks etc.; DoT assigned the talk to NHTSA.

"ossification" = disuse due to heavy interest group influence and "hard look" judicial review.

Direct review by political officials:

  • E.O. 12291: Agencies to conduct cost-benefit analysis and submit rules to OMB for approval.
  • Congressional Review Act of 1996--extensively used 2017 and 2018


Internal Executive "Checks and Balances"

  • bureaucratic overlap to create competing interests
  • Foreign Service examples: career inducements, plus "Dissent Channel"
  • signoff procedures, internal adjudication -- examples
    • current DoJ rules for Special Prosecutor: reports to AG, who does not supervise in detail; can only be fired by the AG, and only for cause
    • replace Asst Atty Gen for Office of Legal Counsel with an administrative judge
    • required reports to Congress upon certain decisions
    • courts could require such procedures as condition for deference to administrative decisions
  • Inspectors General
    • 1921 Budget & Accounting Act moved Comptroller, and general auditing functions, out of Treasury and put the Comptroller General in charge of a new General Accounting Office (now General Accountability Office, GAO)
    • statutory IGs (Inspectors General Act of 1978) now in 73 departments and agencies
      • combine auditing and investigative responsibilities
      • presidential nomination, Senate confirmation; must report to Congress upon firing
      • not supervised by agency/department head
      • coordinate with GAO and with each other through Council of the Inspectors General on Integrity and Efficiency (CIGIE, which replaces the older PCIE of Adair & Simmons)
  • Notice that the power of most of these devices comes ultimately via the threat of publicity, which depends in turn on reporting to Congress and protection by Congress.


This page compiled by Randall Calvert © 2018. Email comments and questions to calvert at wustl